By RICHARD A. EPSTEIN And MARIO LOYOLA The constitutional battle over ObamaCare has largely focused on the constitutionality of the individual mandate. Namely, does forcing individuals to buy health insurance violate the commerce clause? But as the Eleventh Circuit Court of Appeals prepares to hear Florida v. United States, a second issue is of equal importance: Was District Court Judge Roger Vinson correct to rule that the federal government can force states to expand their Medicaid programs as a precondition for continuing to receive matching federal funds for the program?

Under the Patient Protection and Affordable Care Act, states have a choice: Expand their Medicaid rolls or bear the full cost of caring for their state's current Medicaid population, while continuing to subsidize the Medicaid programs of other states. The constitutional danger of such a scheme has long been recognized. In 1936, the Supreme Court warned in U.S. v. Butler that if conditional federal grants were not restrained, the taxing and spending power "could become the instrument for the total subversion of the governmental powers reserved to the individual states."

And yet the government is comparing this Medicaid requirement to a "voluntary" contract. Does anyone believe that a person is entitled "voluntarily" to continue his journey so long as he pays for all poor people who use the roads? The government's action is plainly coercive because it necessarily conditions the exercise of one right upon the conscious surrender of a second.

VUnfortunately, the Supreme Court's decision in South Dakota v. Dole (1987) confused matters. Dole let Congress condition 5% of federal highway funds on the states raising their drinking age to 21. The Court argued that this modest penalty was mere persuasion—not coercion—but cautioned that "in some circumstances, the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion.'"

The question, then, is where that point is. Judge Vinson denied that any such point exists because the federal courts have routinely ignored the Court's warning in Dole by approving virtually every conditional federal grant program—no matter how intrusive.

The reason why the analysis in Dole has failed to offer any protection for state autonomy is that it is fundamentally wrong to think of coercion as a matter of degree. The government always engages in coercion when it taxes away money from the citizens of several states, only to return it to those states that abide by certain conditions.

The Medicaid provision of ObamaCare spells the death knell to competition among the states. States cannot function as "laboratories of democracy"—as the 10th Amendment intended—if the federal government can use its power to tax and spend to bludgeon all states into conformity.

In New York v. United States (1992), the Supreme Court ruled that the federal government cannot require state governments to take ownership of nuclear waste that citizens could not otherwise dispose of safely. And in Printz v. United States (1997), the Court held that the U.S. could not compel local law enforcement officers to conduct background checks on prospective handgun owners without their consent, because such commandeering of state public officials is contrary to the federal structure of our Constitution.

In neither New York nor Printz did the result turn on the "level" of coercion, nor should it do so in the current case. The constant backdrop of the federal taxing power makes a mockery of the claim that state participation under ObamaCare is voluntary. The only way to prevent this grave intrusion on state autonomy is to strike down the Medicaid provisions of the health-reform law.

Mr. Epstein is a professor of law at New York University and a senior fellow at the Hoover Institution. Mr. Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation, which filed an amicus brief in Florida v. United States

The term can be traced to the Articles of Confederation. The term is not in the Constitution. I would hesitate to say that states do not have rights. There is nothing preventing a state to have powers and rights.

It is my position that the term "states rights" is tainted by slavery and Jim Crow. "States Powers" affirms the 10th amd. role of the states without any racist contamination, and is more constitutionally correct.

Seems to me that usage of the term 'states rights' really just means not a power of the federal government, and by state we are referring to the people in the state deciding an issue rather than the government.

By PAUL E. PETERSON AND DANIEL NADLER Last Thursday, the president urged Congress to pony up roughly $200 billion in taxpayer money to "provide more jobs for teachers [and] more jobs for construction workers" and more money to carry out other state and local activities. He urges Congress to spend this money even after handing out hundreds of billions of dollars for similar purposes as part of the 2009 stimulus package, as well as a score and more billion dollars again in 2010.

These vast contributions to the coffers of state and local governments, though pitched as a jobs bill, are in reality the latest in a series of bailouts for debt-ridden state and local governments. They are of special benefit to states in the blue regions of the country where the president's most fervent supporters reside.

In many blue states, legislators have copied the politicians in Washington by running up state debts to extraordinary levels. Nationwide, state debt is running around $3 trillion. If unfunded pension liabilities are factored in, estimated liabilities leap forward by another $1 trillion to $3 trillion, depending on the optimism of the assumptions made.

The bond market has taken notice. Before the 2008 financial crisis, state sovereign debt was just about the safest place to invest. Because investors did not pay taxes on the interest, states were able to borrow money at rates below those paid for federal securities. With the onset of the financial crisis, not only did borrowing costs rise across the board, but differences in interest rates among states widened dramatically. Bond holders concluded that some states, like Greece, had been extraordinarily profligate and, even worse, lacked the will to rein in their expenditures.

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CloseChad Crowe .In a new study at Harvard's Program on Education Policy and Governance, we discovered why the Obama administration is so interested in helping out the states. States with a bluish hue—that is, states with legislatures that are heavily Democratic and have a highly unionized public-sector work force—must pay interest rates that are often an extra half a percentage point higher than states with a reddish coloring.

Specifically, a 20 percentage-point increment in either the Democratic share of the state legislature or a comparable increase in the share of the public work force that is unionized drives up interest rates by nearly a half a percentage point on a five-year security note. That amount is nontrivial. In Obama's home state of Illinois, it is costing governments over $700 million annually.

The impact of these political factors on interest rates is in addition to the impact of standard economic factors, such as a state's unemployment rate, its gross domestic product growth, and its debt-to-GDP ratio, all of which are themselves shaped in part by the state's political climate.

In short, the bond market has concluded that the more unionized the state and the bluer its political coloring, the riskier it is to hold bonds marketed by that state.

States will face even higher interest rates if the president's proposed limit on the deductibility of state and municipal bond interest income (to help pay for the jobs plan) is enacted. If the interest is no longer deductible, investors will demand a higher rate of return for buying bonds, and state calls for more federal aid will intensify.

Federal rescue of states is a dramatic departure from past practice. State bankruptcies date back to the 1840s when, amid a financial crisis, Pennsylvania, Michigan, Illinois and five other states discovered they had invested too heavily in infrastructure. The last state bankruptcy was in Arkansas during the 1930s. But overall the instances were few; in each case the federal government refused to come up with a fix.

Bankrupt states paid the price, but for the country as a whole, a system of fiscally sovereign states has proven incredibly beneficial to the nation's economic well-being. Every state is responsible for its own police, fire, schools, transport and much more, and most of the time they do reasonably well. If they manage their affairs so as to attract business, commerce and talented workers, states prosper. If states make a mess of things, citizens and businesses vote with their feet, marching off to a part of the country that works better.

It is this exceptional federalist system that helped drive the rapid growth of the American economy throughout the first two centuries of the country's history. Because state and local governments competed with one another for venture capital, entrepreneurial talent and skilled workers, governments generally had to be attentive to the needs of both citizens and commerce.

Related Video Texas Sen. Kay Bailey Hutchison on whether Obama's jobs plan can pass the Senate...When it comes to fiscal sovereignty, U.S. federalism is exceptional. Hardly any other country in the world has anything like it. Only Switzerland and Canada—two nations that aren't doing that badly these days—come close.

But federal fiscal bailouts put our federal system at risk. In essence, the national government is acting as if states are too big to fail. In the next financial crisis, the federal government may decide that states need to be treated like General Motors or, at least, be given ever bigger handouts of the kind the Obama administration seems committed to making.

But if the federal government is going to tacitly assume responsibility for state debts, then those $3 trillion in sovereign state debt must be added to the $14 trillion national debt that has already caused grave concern, pushing the current U.S. debt into the danger zone. Even if pension liabilities are ignored, the combined federal-state-local debt runs in excess of 120% of GDP.

The costs go beyond dollars and cents. The more often the federal government bails out the states, the more Washington bureaucrats will insist on regulating state and local affairs. At some point the United States will see the end of state fiscal sovereignty and the demise our federal system of government.

Mr. Peterson, a senior fellow at the Hoover Institution, is the director of Harvard's Program on Education Policy and Governance, where Mr. Nadler is a research fellow. The study mentioned in this op-ed is available at www.ksg.harvard.edu/pepg.

I had a hard time deciding where to post this one-- it easily could have gone in the Education thread here on SC&H or Constitutional issues due to Separation of Powers/Executive Overreach-- but I settled on here:

With his declaration on Friday that he would waive the most contentious provisions of a federal education law, President Obama effectively rerouted the nation’s education history after a turbulent decade of overwhelming federal influence.

RelatedTimes Topic: No Child Left Behind ActMr. Obama invited states to reclaim the power to design their own school accountability and improvement systems, upending the centerpiece of the Bush-era No Child Left Behind law, a requirement that all students be proficient in math and reading by 2014.

“This does not mean that states will be able to lower their standards or escape accountability,” the president said. “If states want more flexibility, they’re going to have to set higher standards, more honest standards that prove they’re serious about meeting them.”

But experts said it was a measure of how profoundly the law had reshaped America’s public school culture that even in states that accept the administration’s offer to pursue a new agenda, the law’s legacy will live on in classrooms, where educators’ work will continue to emphasize its major themes, like narrowing student achievement gaps, and its tactics, like using standardized tests to measure educators’ performance.

In a White House speech, Mr. Obama said states that adopted new higher standards, pledged to overhaul their lowest-performing schools and revamped their teacher evaluation systems should apply for waivers of 10 central provisions of the No Child law, including its 2014 proficiency deadline. The administration was forced to act, Mr. Obama said, because partisan gridlock kept Congress from updating the law.

But while the law itself clearly empowers Secretary of Education Arne Duncan to waive its provisions, the administration’s decision to make the waivers conditional on states’ pledges to pursue Mr. Obama’s broad school improvement agenda has angered Republicans gearing up for the 2012 elections.

On Friday Congressional leaders immediately began characterizing the waivers as a new administration power grab, in line with their portrayal of the health care overhaul, financial sector regulation and other administration initiatives.

“In my judgment, he is exercising an authority and power he doesn’t have,” said Representative John Kline, Republican of Minnesota and chairman of the House education committee. “We all know the law is broken and needs to be changed. But this is part and parcel with the whole picture with this administration: they cannot get their agenda through Congress, so they’re doing it with executive orders and rewriting rules. This is executive overreach.”

Mr. Obama made his statements to a bipartisan audience that included Gov. Bill Haslam of Tennessee, a Republican, Gov. Lincoln Chafee of Rhode Island, an independent, and 24 state superintendents of education.

“I believe this will be a transformative movement in American public education,” Christopher Cerf, New Jersey’s education commissioner under Gov. Chris Christie, a Republican, said after the speech.

The No Child law that President George W. Bush signed in 2002 was a bipartisan rewrite of the basic federal law on public schools, first passed in 1965 to help the nation’s neediest students. The 2002 law required all schools to administer reading and math tests every year, and to increase the proportion of students passing them until reaching 100 percent in 2014. Schools that failed to keep pace were to be labeled as failing, and eventually their principals fired and staffs dismantled. That system for holding schools accountable for test scores has encouraged states to lower standards, teachers to focus on test preparation, and math and reading to crowd out history, art and foreign languages.

Mr. Obama’s blueprint for rewriting the law, which Congress has never acted on, urged lawmakers to adopt an approach that would encourage states to raise standards, focus interventions only on the worst failing schools and use test scores and other measures to evaluate teachers’ effectiveness. In its current proposal, the administration requires states to adopt those elements of its blueprint in exchange for relief from the No Child law.

Mr. Duncan, speaking after Mr. Obama’s speech, said the waivers could bring significant change to states that apply. “For parents, it means their schools won’t be labeled failures,” Mr. Duncan said. “It should reduce the pressure to teach to the test.”

Critics were skeptical, saying that classroom teachers who complain about unrelenting pressure to prepare for standardized tests were unlikely to feel much relief.

“In the system that N.C.L.B. created, standardized tests are the measure of all that is good, and that has not changed,“ said Monty Neill, executive director of Fair Test, an antitesting advocacy group. “This policy encourages states to use test scores as a significant factor in evaluating teachers, and that will add to the pressure on teachers to teach to the test.”

Randi Weingarten, president of the American Federation of Teachers, said her union favored evaluation systems that would help teachers improve their instruction, whereas the administration was focusing on accountability. “You’re seeing an extraordinary change of policy, from an accountability system focused on districts and schools, to accountability based on teacher and principal evaluations,” Ms. Weingarten said.

For most states, obtaining a waiver could be the easy part of accepting the administration’s invitation. Actually designing a new school accountability system, and obtaining statewide acceptance of it, represents a complex administrative and political challenge for governors and other state leaders, said Gene Wilhoit, executive director of the Council of Chief State School Officers, which the White House said played an important role in developing the waiver proposal.

Only about five states may be ready to apply immediately, and perhaps 20 others could follow by next spring, Mr. Wilhoit said. Developing new educator evaluation systems and other aspects of follow-through could take states three years or more, he said.

Officials in New York, New Jersey and Connecticut, and in at least eight other states — Colorado, Florida, Georgia, Kentucky, Idaho, Minnesota, Virginia and Wisconsin — said Friday that they would probably seek the waivers.

That means the most important public policy debates facing the nation will remain locked under the icy divide between the Democratic majority in the Senate and the Republican majority in the House. This forecast has held true since the start of the 112th Congress last January.

The frigid environment led the president last week to make a controversial recess appointment for the head of a new consumer watchdog agency. Senate Republicans, true to the freeze, claim the Senate is not in recess so as to block the appointment. The president, playing on the historic high level of public discontent with congressional inaction, said he refused to “stand by while a minority in the Senate puts party ideology ahead of the people they were elected to serve.”

Last year the freeze on Capitol Hill brought us a paltry two-month extension of the payroll tax cut. It also led to the failure of the supercommittee, the burying of the deficit reduction plan proposed by former Sen. Alan Simpson (R-Wyo.) and former White House Chief of Staff Erskine Bowles and three-near government shutdowns. The cold inside the Capitol spread to Wall Street and led to the downgrade of the nation’s credit rating.

And now there is the added chill that arrives with an election year. The GOP has no incentive to give the president any legislative victories. At best, Republicans in the House and Democrats in the Senate will try to force their opposition into casting unpopular votes on big issues. The goal is not to pass any meaningful legislation but to score political points and create fodder for political attack ads.

The bottom line for the coming year is that action on issues affecting the lives of real Americans will come from state governments and federal courts. Here are three major policy fights that will take place on battlegrounds far from Capitol Hill.

Immigration: GOP governors and state legislatures are pressing tough new immigration laws modeled after Arizona’s S.B. 1070. States such as South Carolina, Tennessee, Alabama and Georgia have enacted similar “Papers Please” laws. A federal judge blocked Arizona’s law in 2010 and last month, another federal court blocked parts of the South Carolina law as unconstitutional infringement on federal law. The GOP proponents of the state laws argue they are necessary due to Congress’ failure to act on immigration reform. The Supreme Court has announced it will rule on Arizona’s appeal sometime this year.

Healthcare: In the absence of federal reform, Medicaid will continue its downward spiral into insolvency. This means that cash-strapped states will have to make painful cuts and enact cost-saving measures like means-testing to make up the difference. Also, the Supreme Court has said it will rule on the individual mandate in President Obama’s healthcare reform law. Several Republican governors argue it is unconstitutional and will burden businesses in their states. Last November, 66 percent of voters in Ohio voted for a ballot initiative which declared their state to be exempt from a national healthcare mandate – directly contradicting a central piece of the Affordable Healthcare Act – and setting up a fight between the state government and a paralyzed federal government.

Education: Congress has failed to pass much-needed revisions to No Child Left Behind for the past three years and it is highly unlikely they will do so in 2012. States are using up their stopgap funding for education that was included in the stimulus bill. And the Race to the Top grant program where states compete for additional funding faces serious cuts. The only hope for education reform would appear to be on the state level. GOP governors are following the lead of New Jersey Gov. Chris Christie, a passionate reform advocate. However, Christie was unable to get his ambitious reform package through his Democratic-controlled state legislature in 2011. Christie says he will renew his push for merit pay, tenure reform and expansion of charter schools and vouchers in 2012.

And the list of major public policy disputes also includes the controversy over state laws requiring photo identification for voters. The Department of Justice has challenged several of these laws, setting the stage for another battle in federal court. South Carolina’s new voter ID law was recently blocked by the DOJ under the 1965 Voting Rights Act. Gov. Nikki Haley (R-S.C.) has said she is prepared to challenge the Obama administration all the way to the Supreme Court on this one.

Presidential and congressional candidates will be reacting to whatever legislative action comes from the states. Note that each of these issues tests the limits of federalism itself. This bedrock principle of the U.S. Constitution, codified by the Tenth Amendment, says that there is a separation of powers between the state and federal government. But what happens when the federal government is not doing its job?

Voters can expect both Republicans and Democrats to run against the do-nothing Congress.

Because of Congress’s partisan paralysis, 2012 may signal a monumental shift in power away from the federal government to the state governments – and in the process permanently alter the constitutional interpretation of federalism.

Attorney General Eric Holder is on a legal roll against the 50 states, and 2012 will be the year the courts rule on some of his federal power plays. The first big test comes today when the Supreme Court hears oral arguments in Mr. Holder's challenge to Texas's Congressional redistricting plan. This could be educational.

The 2010 Census gave Texas four new Congressional seats, for a total of 36, and the Republicans who dominate state politics drew up the new lines in a way that maintained the current 10 minority districts and added a new Hispanic "opportunity district," which is one with at least 50% Hispanic population.

Under Section 5 of the 1965 Voting Rights Act, Texas is one of nine states that must have changes in its election laws cleared by a federal court or the Justice Department. Texas opted for the former, and while "preclearance" for the changes was pending in federal court in Washington, a panel of judges in Texas designed an interim electoral map that skewed more favorable to Democrats. Republicans cried foul, and the Supreme Court blocked the map until it rules on the case.

Enter Mr. Holder's Justice Department, which insists that Texas must add more minority-dominated districts to take account of a growing Hispanic population. Civil-rights groups like the NAACP claim that at least three of the four new districts should be minority districts.

That kind of raw proportional representation has already been shot down by the Supreme Court. In 1996's Abrams v. Johnson, the Court ruled that similar claims that a Georgia redistricting had diluted minority voting strength didn't hold water. In the opinion, by Justice Anthony Kennedy, the High Court wrote that when a court is tasked with drawing judicial lines, it "should be guided by the legislative policies underlying the existing plan."

In Texas, the federal district court's intervention goes beyond merely looking at minority representation. Instead of deferring to the maps drawn by lawmakers or making specifically tailored adjustments, the court changed the boundaries of all 36 Congressional districts despite no legal finding of wrongdoing by the legislature's map-makers.

Drawing majority-minority districts was once relatively straightforward, but social and racial progress has made that both less necessary and less realistic. There are fewer inner-city barrios that allow lawmakers to identify geographically and ethnically coherent political districts. The Hispanics who have swelled Texas's population live all over Dallas County, for example. Trying to string them together to achieve an artificial version of racial proportionality devalues the racial integration that has been made in the past four decades.

The Supreme Court will decide what rules the courts should follow, and what deference they owe to the legislature. While the three-judge panel in San Antonio will eventually look into whether the legislature's map violated the Voting Rights Act, that factually intensive analysis hasn't happened yet. In the meantime, the judges should have sought a minimally invasive solution.

Congress has routinely renewed the Voting Right Act, but the racial gerrymanders the law encourages have arguably increased racial polarization while reducing minority influence. In Texas, Democrats hope that more majority-minority districts will elect more Democrats, but this may not enhance minority political clout.

Texas is a largely Republican state and more Hispanics have been elected statewide as Republicans than as Democrats in recent years, including former state supreme court Justice Alberto Gonzales and current Justices Eva Guzman and David Medina. Mr. Holder's preference for a map like the one drawn by the Texas court to stock districts with black or Hispanic voters may help elect another Democratic Congressman or two, but they will have little power if the GOP keeps its U.S. House majority.

As Justice Clarence Thomas noted in his classic dissent in 1994's Holder v. Hall, "few devices could be better designed to exacerbate racial tensions than the consciously segregated districting system currently being constructed in the name of the Voting Rights Act. . . . Our drive to segregate political districts by race can only serve to deepen racial divisions by destroying any need for voters or candidates to build bridges between racial groups or to form voting coalitions."

Redistricting has always been a political process, and unless a court finds a violation of law it owes deference to the elected state legislature. The Justice Department's position is a federal intrusion to elect more Democrats, not improve racial harmony.

Even though the fundamental point of this editorial from Pravda on the Hudson is distinct from the legal issue of States Rights, it is not without merit IMHO (and yes, some of the reasoning is unsound too)

State governments have long been accused of backroom dealing, cozy relationships with moneyed lobbyists, and disconnection from ordinary citizens. A new study suggests those accusations barely scratch the surface.

The study, issued Monday by a consortium led by the Center for Public Integrity, a nonpartisan watchdog group, found that most states shy away from public scrutiny, fail to enact or enforce ethics laws, and allow corporations and the wealthy a dominant voice in elections and policy decisions. The study gave virtually every state a mediocre to poor grade on a wide range of government conduct, including ethics enforcement, transparency, auditing and campaign finance reform. No state got an A; five received B’s, and the rest grades of C, D or F.

For all the reform talk by many governors and state lawmakers, very little has really changed in most capitals over the decades. Budgeting is still done behind closed doors, and spending decisions are revealed to the public at the last minute. Ethics panels do not bother to meet, or never enforce the conflict-of-interest laws that are on the books. Lobbyists have free access to elected officials, plying them with gifts or big campaign contributions. Open-records acts are shot through with loopholes.

And yet all the Republican presidential candidates think it would be a good idea to hand some of Washington’s most important programs to state governments, which so often combine corruptibility with incompetence. In a speech on Monday, Mitt Romney said he would dump onto the states most federal anti-poverty programs, including Medicaid, food stamps and housing assistance, because states know best what their local needs are.

States, however, generally have a poor record of taking care of their neediest citizens, and could not be relied on to maintain lifeline programs like food stamps if Washington just wrote them checks and stopped paying attention. In many states, newspapers and broadcasters have cut their statehouse coverage, reducing scrutiny of government’s effectiveness and integrity.

The new study shows that several of the states doing the best anti-corruption work had to endure years of scandal to get there. The state with the best grade (B+) was New Jersey, which may be surprising considering its reputation for cronyism and payoffs. In 2005, however, after years of embarrassing scandals, the state passed some of the toughest ethics laws in the country. Lobbyist gifts are prohibited, state contractors cannot give to campaigns, ethics training is mandatory for state employees and an ethics board has real power to enforce the laws.

New Jersey still has problems, including lax financial disclosure laws and no ban on lawmakers’ holding two public jobs, but it is doing much better than New York, which got a D. There is little enforcement in Albany of campaign finance limits, and the final budget process is done in secret. Gov. Andrew Cuomo’s new ethics commission is filled with many loyal to him and the Legislature and is still untested.

At the bottom of the heap was Georgia, which came in last for not enforcing what ethics laws it has on the books. The study noted that 650 state employees accepted gifts from vendors in recent years, clearly violating ethics laws, but no one was punished. Seven other states also receiving F’s were hardly better.

The report shows that most statehouses can barely be trusted to maintain the rudiments of good government. Without deep reforms, they certainly should not be asked to handle more federal programs on which millions rely.

State governments have long been accused of backroom dealing, cozy relationships with moneyed lobbyists, and disconnection from ordinary citizens. A new study suggests those accusations barely scratch the surface.

The Obama administration on Friday said that it will recognize as lawful the marriages of 1,300 same-sex couples in Utah, even though the state government is refusing to do so.

Wading into the fast-moving legal battle over same-sex marriage rights in one of America’s most socially conservative states, the administration posted a video on the Justice Department’s website. Attorney General Eric H. Holder Jr. said that the federal government will grant federal marriage benefits to the same-sex couples who had rushed to obtain marriage licenses after a federal judge last month unexpectedly struck down Utah’s ban on same-sex marriage.

“I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages,” Mr. Holder said in the video. “These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.”

Many themes in this piece, but some of it is relevant here and I did not know where else to put it.

By Robert D. Kaplan

Many years ago, I visited Four Corners in the American Southwest. This is a small stone monument on a polished metal platform where four states meet. You can walk around the monument in the space of a few seconds and stand in four states: Arizona, New Mexico, Colorado and Utah. People lined up to do this and have their pictures taken by excited relatives. To walk around the monument is indeed a thrill, because each of these four states has a richly developed tradition and identity that gives these borders real meaning. And yet no passports or customs police are required to go from one state to the other.

Well, of course that's true, they're only states, not countries, you might say. But the fact that my observation is a dull commonplace doesn't make it any less amazing. To be sure, it makes it more amazing. For as the late Harvard Professor Samuel P. Huntington once remarked, the genius of the American system lies less in its democracy per se than in its institutions. The federal and state system featuring 50 separate identities and bureaucracies, each with definitive land borders -- that nevertheless do not conflict with each other -- is unique in political history. And this is not to mention the thousands of counties and municipalities in America with their own sovereign jurisdictions. Many of the countries I have covered as a reporter in the troubled and war-torn developing world would be envious of such an original institutional arrangement for governing an entire continent.

In fact, Huntington's observation can be expanded further: The genius of Western civilization in general is that of institutions. Sure, democracy is a basis for this; but democracy is, nevertheless, a separate factor. For enlightened dictatorships in Asia have built robust, meritocratic institutions whereas weak democracies in Africa have not.

Institutions are such a mundane element of Western civilization that we tend to take them for granted. But as I've indicated, in many places I have worked and lived, that is not the case. Getting a permit or a simple document is not a matter of waiting in line for a few minutes, but of paying bribes and employing fixers. We take our running water and dependable electric current for granted, but those are amenities missing from many countries and regions because of the lack of competent institutions to manage such infrastructure. Having a friend or a relative working in the IRS is not going to save you from paying taxes, but such a situation is a rarity elsewhere. Successful institutions treat everyone equally and impersonally. This is not the case in Russia or Pakistan or Nigeria.

Of course, Americans may complain about poor rail service and deteriorating infrastructure and bureaucracies, especially in inner cities, but it is important to realize that we are, nevertheless, complaining on the basis of a very high standard relative to much of the developing world.

Institutions, or the lack of them, explain much that has happened in the world in recent decades. Following the collapse of the Berlin Wall, Central Europe went on to build functioning democracies and economies. With all of their problems and challenges, the Baltic states, Poland, the Czech Republic, Slovakia and Hungary have not fared badly and in some cases have been rousing success stories. This is because these societies boast high literacy rates among both men and women and have a tradition of modern bourgeois culture prior to World War II and communism. And it is literacy and middle class culture that are the building blocks of successful institutions. Institutions after all require bureaucrats, who must, in turn, be literate and familiar with the impersonal workings of modern organizations.

The Balkans have been less fortunate, with bad government and unimpressive growth the fare in Romania since 1989, semi-chaos rearing its head in Albania and Bulgaria, and inter-ethnic war destroying the Yugoslav federation in the 1990s. Here, too, a history of lower literacy rates, weak or in some cases non-existent middle classes, and an Eastern Orthodox faith that, because it is more contemplative it does not encourage impersonal standards, at least to the degree of Protestantism or even Catholicism, have all been factors in a weaker institutional basis for economic growth and political stability. Russia, too, fits into this category. Its system of oligarchs is a telltale sign of weak institutions, since corruption merely indicates an alternative pathway to getting things done when laws and the state bureaucracies are inadequately developed.

Then there is the greater Middle East. The so-called Arab Spring failed because the Arab world was not like Central and Eastern Europe. It had low literacy, especially among women. It had little or no tradition of a modern bourgeois, despite commercial classes in some cities, and so no usable institutions to fall back upon once dictatorships crumbled. Thus, what was left in North Africa and the Levant after authoritarianism was tribes and sects; unlike the post-communist civil society that encouraged stability in Central Europe. Turkey and Iran, as real states with more successful urbanization and higher literacy rates, are in an intermediate category between southern Europe and the Arab world. Obviously, even within the Arab world there are distinctions. Egyptian state institutions are a reality to a degree that those in Syria and Iraq are not. Egypt is governable, therefore, if momentarily by autocratic means, whereas Syria and Iraq seem not to be.

Finally, there is Africa. In many African countries, when taking a road out of the capital, very soon the state itself vanishes. The road becomes a vague dirt track, and the domains of tribes and warlords take over. This is a world where, because literacy and middle classes are minimal (albeit growing), institutions still barely exist. The way to gauge development in Africa is not to interview civil society types in the capitals, but to go to the ministries and other bureaucracies and wait in line and see how things work -- and if they do.

Indeed, people lie to themselves and then lie to journalists and ambassadors. So don't listen to what people (especially elites) say; watch how they behave. Do they pay taxes? Where do they stash their money? Do they wait in line to get drivers' permits, and so forth? It is behavior, not rhetoric, that indicates the existence of institutions, or lack thereof.

Elections are easy to hold and indicate less than journalists and political scientists think. An election is a 24- or 48-hour affair, organized often with the help of foreign observers. But a well-oiled ministry must function 365 days a year. Lee Kuan Yew is one of the great men of the 20th century because he built institutions and, therefore, a state in Singapore. For without basic order there can be no meaningful freedom. And institutions are the foremost tools of order.

Because institutions develop slowly and organically, even under the best of circumstances, their growth eludes journalists who are interested in dramatic events. Thus, media stories often provide a poor indication of the prospects of a particular country. The lesson for businesspeople and intelligence forecasters is: Track institutions, not personalities.

"In the next place, the state governments are, by the very theory of the constitution, essential constituent parts of the general government. They can exist without the latter, but the latter cannot exist without them." --Joseph Story Commentaries on the Constitution, 1833

There has been a lot of hand-wringing in recent years about how divided Washington is, and how it's difficult for the parties to come together on anything. But the reality is that the states are divided among themselves.

The architecture of the Constitution offers a natural solution to this problem. Instead of trying to solve every issue at the national level, power should be shifted back to the states. Those states whose residents are willing to pay higher taxes for more government services should be free to do so, as should states whose residents are willing to forgo government benefits in favor of lower taxes. Under such a system, instead of bitterly hashing out every issue in Washington, Congress could be focusing on a limited range of issues.

It's clear that liberals don't see things this way. But it should be no surprise that their efforts to impose one-size-fits-all solutions across the nation encounter so much resistance.

14471 SHARESShare on Facebook Tweet on TwitterZObamaApparently seething with authoritarian hubris, President Obama is seeking to wave his magic “pen and a phone” once more to undo legislatively-passed laws and set the stage for allowing Hawaii to secede as a state.

For decades, the State of Hawaii has vied for the right to return to being a sovereign kingdom. The chain of islands has a fascinating and rich history as a kingdom, but was adopted as a state in 1959. Multiple attempts by Hawaiian lawmakers to return Hawaii to a kingdom have failed and in recent years, Former Senator Daniel Inouye and Senator Daniel Akaka, Democrats senators from Hawaii, have pushed the Native Hawaiian Recognition Act- an act that would restore Hawaii to a kingdom run by ethnically native Hawaiians.

As one might expect, Congress has routinely defeated this legislation. A 2007 DOJ statement to the Senate highlighted the absurdity of the proposed law and noted,

“Moreover, S. 310 effectively seeks to undo the political bargain through which Hawaii secured its admission into the Union in 1959. On November 7, 1950, all citizens of the Hawaiian Territory – including native Hawaiians – voted to seek admission to the United States. See, e.g., Pub. L. No. 86-3, 73 Stat. 4. By a decisive 2-1 margin, native Hawaiians themselves voted for statehood, thus voluntarily and democratically relinquishing any residual sovereignty to the United States.”

Obama, who grew up in Hawaii (amongst many other places), appears sympathetic to this plight and his Department of the Interior has issued an Advance Notice of Proposed Rulemaking to overrule the will of Congress.

What the notice proposes is enacting a “government-to-government relationship between the United State and the Native Hawaiian community,” allowing the government of Hawaii to run as a kingdom dominated by a racial hierarchy, with native Hawaiians being in charge.

Obama’s crusade, however, is fraught with legal complications. Aside from the obvious fact that such decisions are not the domain of the president, but rather the legislative body, Obama’s actions would likely violate 15th Amendment protections as well as establish a precedent that states can secede in the pursuit of instituting a government centered on racial hierarchy- an obvious violation of innumerable tenets of our government and society.

In late May, TPNN reported:

The policy proposal, an Advanced Notice of Proposed Rulemaking, states:

“The Secretary of the Interior is considering whether to propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community.”

The document claims that the goal is “to more effectively implement the special political and trust relationship that Congress has established between that [Hawaiian] community and the United States.”

What this does is essentially create a two-tier system based on race in Hawaii. It will afford separate taxes and law enforcement to one race and another set of policies will govern another race.

Since then, the Department of the Interior has endured a barrage of push-back from legislators and other assorted bureaucrats who have maintained that not only is this a terrible idea, but one that is inherently unconstitutional. Under Article I, Section 8 of the Constitution, Congress, not the president, has the authority to recognize tribes.

In fact, Obama’s head of Indian Affairs at the Interior Department, Assistant Secretary Kevin K. Washburn, testified before a House subcommittee that this administration did not “have the authority to recognize Native Hawaiians.” Washburn claimed that “we would need legislation to be able to proceed down that road.”

Still, despite having no Constitutional authority, the Obama administration is continuing to push the policy change that could have far-reaching effects. It is unclear if even the Congress has the authority to allow such policies; it is, however, certain that the executive branch possesses no such powers.

While it is far from certain that Hawaii will be granted the right to secede, what such policy shifts are aimed at is creating a wider divide between races and unapologetically implementing a racial hierarchy with native Hawaiians at the top.

At a time when the most divisive president in history pretends to be interested in equality and egalitarian beliefs, it’s nauseating to see his administration stoke the flames of racial prejudice and seek to codify racial supremacy in law.